Trademark Surveys: An Undulating Path

Shari Seidman Diamond & David J. Franklyn

92 Texas L. Rev. 2029

Currently, when a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, proof of consumers’ reactions to an advertisement is largely presented through the use of systematic survey evidence. While these surveys can be effective tools, several scholars have questioned the role that these surveys actually play in trademark cases. Using a survey that investigated how attorneys in the United States and internationally use surveys in trademark litigation, Professors Diamond and Franklyn examine the role these surveys play in trademark litigation. In this article, Professors Diamond and Franklyn provide a description of the primary legal topics that appear in trademark and deceptive advertising surveys. They then review the recent studies that investigate the presence and influence of surveys in reported infringement decisions. They examine a sample of cases that did not include survey evidence to assess why surveys are or are not submitted in trademark cases. Finally, they offer an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence.